Justice is revered for its tolerance to uphold equality and not for creating terror in minds.
Introduction
Contempt of court is a broad, common law doctrine. It was described by Joseph Moscovitz, in an often-quoted article in the Columbia Law Review, as “the Proteus of the legal world, assuming an almost infinite diversity of forms.” The law of contempt is essentially concerned with interference with the administration of justice. In common law jurisdictions, contempt of court has traditionally been classified as either in facie curiae (in front of the court) or ex facie curiae (outside the court), or as criminal or civil. The latter distinction can be confusing because it has nothing to do with whether the proceedings are criminal or civil.
The major international and regional human rights instruments on civil and political rights — the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and People’s Rights (ACHPR) — all protect both freedoms of expression and the administration of justice.
In India, the Rule of Law’ is the basic rule of governance of any civilized democratic polity.- Our Constitutional scheme is based upon the concept of Rule of Law which we have adopted and given to ourselves. Everyone, whether individually or collectively is unquestionably under the supremacy of law. Whoever the person may be, however high he or she is, no-one is above the law notwithstanding how powerful and how rich he or she may be. For achieving the establishment of the rule of law, the Constitution has assigned a special task to the judiciary in the country. It is only through the courts that the rule of law unfolds its contents and establishes its concept. For the judiciary to perform its duties and functions effectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs. After more than half a century of independence, the judiciary in the country is under a constant threat and being endangered from within and without.
The need of the time is of restoring confidence amongst the people for the independence of the judiciary. Its impartiality and the glory of law have to be maintained, protected, and strengthened. The confidence in the courts of justice, which the people possess, cannot, in any way, be allowed to be tarnished, diminished, or wiped out by the contumacious behaviour of any person. The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of court left in the armoury of the judicial repository which, when needed, can reach any neck howsoever high or far away it may be.
The relevant laws on the subject
The Contempt of Courts Act, 1971 is promulgated in this country specifically to uplift the magnanimity of the court which often is put in conflict with the freedom of expression enshrined in our constitution and often revered to be to be most important provision to ensure democratic values.
Section 2(c) of the Act, reading as under: Definitions – In this Act, unless the context otherwise requires – (c) ‘criminal contempt’ means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which – (i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
Under the Act, the action for contempt is taken by only two courts, either the Supreme Court or the High Court. The procedure is prescribed under Section 15 of the Act, which reads as follows:
“15. Cognizance of criminal contempt in other cases. – (1) In the case of criminal contempt, other than a contempt referred to in section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by- (a) the Advocate-General, or (b) any other person, with the consent in writing to (sic of) the Advocate-General, or (c) in relation to the High Court for the Union territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer. (2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf. (3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty. Explanation.-In this section, the expression “Advocate-General” means- (a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General; (b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established; (c) in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.”
Therefore the Criminal Contempt of court subordinate to the High Court can be initiated either suo motu or on a motion made by the Advocate General. The suo motu action is set in motion on a Reference made to it by the subordinate court. In view of the process involved in making the Reference by the subordinate court, in the Pallav Sheth case (supra), it has been held that the Reference is the starting point of the process of initiation of the action for contempt. That is why in paragraph-39, which we have extracted above, it has been clearly held that “unless a court was to take suo motu action, the proceeding under The Contempt of Courts Act, 1971 would normally commence with the filing of an application drawing the attention of the court to the contempt having been committed. The application is the motion provided under Section 15 of The Contempt of Courts Act, 1971. Such a motion, by any person other than Advocate General, can be made only with the consent in writing of the Advocate General. In other words, any other application made by a person without the consent of the Advocate General is not an application in the eyes of law.”
The Supreme Court has, with the approval of the president, framed, in the exercise of its powers under S. 23 of the Act read with Art. 145 of the Constitution, rules to regulate proceedings for contempt of the SC. The rules relevant for our present purpose are the following:
In case of contempt other than the contempt referred to in R. 2, the court may take action:- (a) suo motu, or (b) on a petition made by Attorney General, or Solicitor General or (c) on a petition made by any person, and in the case of criminal contempt, with the consent in writing of the Attorney General or the Solicitor General. 4. (a) Every petition under R. 3(b) or (c) shall contain: (i) the name, description, and place of residence of the petitioner or petitioners and of the persons charged; (ii) nature of the contempt alleged, and such material facts, including the date or dates of commission of the alleged contempt as may be necessary for the proper determination of the case; (iii) if a petition has previously been made by him on the same facts, the petitioner shall give the details of the petition previously made and shall also indicate the result thereof; (b) The petition shall be supported by an affidavit. (c) Where the petitioner relies upon a document or documents in his possession or power, he shall file such document or documents or true copies thereof with the petition. (d) No court-fee shall be payable on the petition, and on any documents filed in the proceedings. (5) Every petition under R. 3(b) and (c) shall be posted before the Court for a preliminary hearing and for orders as to the issue of notice. Upon such hearing, the Court, if satisfied that no prima facie case has been made out for issue of notice, may dismiss the petition, and, if not so satisfied direct that notice of the petition is issued to the contemner.
The conflict
“The contempt of court jurisdiction is not exercised to protect the dignity of an individual judge, but to protect the administration of justice from being maligned.” This observation was made by a Constitution Bench of the supreme court Court in Supreme Court Bar Association v. Union of India & Anr.
One of the earliest occasions, when the Supreme Court had to deal with criminal contempt of Court, was when a Constitution Bench of this Court (Patanjali Sastri, CJ, B.K. Mukherjea, S.R. Das, Ghulam Hasan, and N.H. Bhagwati, JJ.) decided the case of Brahma Prakash Sharma & Ors. v. State of U.P. ( 1953 SCR 1169 ). Their Lordships referred to certain decisions of English courts including some observations of the Privy Council and pointed out that there are primarily two considerations in such matters.
In the first place, the reflection on the conduct or character of a judge in reference to the discharge of his judicial duties would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice. In the second place, when attacks or comments are made on a judge or judges, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is a libel on the judge and what amounts really to contempt of court.
The Constitution Bench laid down the ratio thus: “If, however, the publication of the disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such court, it can be punished summarily as contempt. One is a wrong done to the judge personally while the other is a wrong done to the public. It will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability, or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court s administration of justice, or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties. It is well established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such a defamatory statement; it is enough if it is likely, or tends in any way, to interfere with the proper administration of law.”
In Delhi, Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Ors. (1991(4) SCC 406) a three-Judge Bench of the Supreme Court observed thus: “The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of the court. The public has a vital stake in the effective and orderly administration of justice. The Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with.”
In Dr. D.C. Saxena v. Hon’ble, the Chief Justice of India a contemner filed a writ petition against the then Chief Justice of India and sought a declaration that the then Chief Justice of India was unfit to hold that office and hence he should be stripped of his citizenship. “Scandalising the court, therefore, would mean hostile criticism of judges as judges or judiciary. Any personal attack upon a judge in connection with the office he holds is dealt with under the law of libel or slander. Yet defamatory publication concerning the judge as a judge brings the court or judges into contempt, a serious impediment to justice and an inroad on the majesty of justice. Any caricature of a judge calculated to lower the dignity of the court would destroy, undermine, or tend to undermine public confidence in the administration of justice or the majesty of justice.”
In that respect, the defence of good faith is often resorted to. The expression “good faith” in criminal jurisprudence has a definite connotation. Its import is totally different from saying that the person concerned has honestly believed the truth of what is said. Good faith is defined in Section 52 of the Indian Penal Code thus: “Nothing is said to be done or believed in good faith which is done or believed without due care and attention.”
Therefore before a person proposes to make an imputation on another the author must first make an inquiry into the factum of the imputation which he proposes to make. It is not enough that he does just make-believe show for an inquiry. The inquiry expected of him is of such a depth as a reasonable and prudent man would make with the genuine intention in knowing the real truth of the imputation which is up in his sleeves. If he does not do so he cannot claim that what he did was bona fide i.e. done in good faith.
Dealing with the expression “good faith” in relation to the exceptions enumerated under Section 499 of the Indian Penal Code (relating to the offence of defamation) the supreme Court in Harbhajan Singh v. State of Punjab and Anr. AIR 1966 SC 97. (Para 31) has stated thus: “The element of honesty which is introduced by the definition prescribed by the General Clauses Act is not introduced by the definition of the Penal Code, and we are governed by the definition prescribed by Section 52 of that Code. So, in considering the question as to whether the appellant acted in good faith in publishing his impugned statement, we have to enquire whether he acted with due care and attention. There is no doubt that the mere plea that the accused believed that what he stated was true by itself, will not sustain his case of good faith under the Ninth Exception. A simple belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role. If it appears that before making the statement the accused did not show due care and attention, that would defeat his plea of good faith.”
The advocates receive no privilege in the filed of contempt of court. In Re: Sanjiv Datta, Dy. Secy., Ministry of Information & Broadcasting, (1995) SCC 619, the Supreme Court while dealing with the issue held :
“……Some members of the profession have been adopting a perceptibly casual approach to the practice of the profession as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings – many times even illegible and without personal check and verification, the nonpayment of court fees and process fees, the failure to remove office objections, the failure to take steps to serve the parties, et al. They do not realize the seriousness of these acts and omissions. They not only amount to the contempt of the court but do a positive disservice to the litigants and create an embarrassing situation in the court leading to avoidable unpleasantness and delay in the disposal of matters. This augurs ill for the health of our judicial system….. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilized society… The casualness and indifference with which some members practice the profession are certainly not calculated to achieve that purpose or to enhance the prestige either of the profession or of the institution they are serving..” (Emphasis added)
“Law is no trade, briefs no merchandise”. An advocate being an officer of the court has a duty to ensure the smooth functioning of the Court. He has to revive the person in distress and cannot exploit the helplessness of innocent litigants. A willful and callous disregard for the interests of the client may in a proper case be characterized as conduct unbefitting an advocate. (See: In the matter of Mr. ‘P’, an Advocate, AIR 1963 SC 1313; T.C. Mathai & Anr. v. District & Sessions Judge, Thiruvananthapuram, AIR 1999 SC 1385 D.P. Chadha v. Triyugi Narain Mishra & Ors., AIR 2001 SC 457; and Smt. Poonam v. Sumit Tanwar, AIR 2010 SC 1384).
Lawyers play an important part in the administration of justice. The profession itself requires the safeguarding of high moral standards. As an officer of the court, the overriding duty of a lawyer is to the court, the standards of his profession, and to the public. Since the main job of a lawyer is to assist the court in dispensing justice, the members of the Bar cannot behave with doubtful scruples or strive to thrive on litigation. Lawyers must remember that they are equal partners with judges in the administration of justice. If lawyers do not perform their function properly, it would be destructive of democracy and the rule of law. (Vide: Manak Lal v. Dr. Prem Chand Singhvi & Ors., AIR 1957 SC 425; Smt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand & Ors., AIR 1975 SC 2202; The Bar Council of Maharashtra v. M.V. Dabholkar, AIR 1976 SC 242; S. P. Gupta & Ors. v. President of India & Ors., AIR 1982 SC 149; and Sheela Barse v. the State of Maharashtra, AIR 1983 SC 378).
In Shri Barada-Kanta Mishra v. The Registrar of Orissa High Court & Anr. [1974(1) SCC 374] the Supreme Court. It declared that the Act accepts what was laid own by the Privy Council and other English authorities that proceedings in contempt are always with reference to the administration of justice. The scandalisation within the meaning of sub-section (i) must be in respect of the court or the judge with reference to the administration of justice. This Court concluded that the courts of justice are, by their constitution, entrusted with functions directly connected with the administration of justice, and it is the expectation and confidence of all those who have or likely to have business therein that the court perform all their functions on a high level of rectitude without fear or favour, affection or ill-will. It is this traditional confidence in courts of justice that justice will be administered to the people which is sought to be protected by proceedings in contempt. The object obviously is not to vindicate the judge personally but to protect the public against any undermining of their accustomed confidence in the institution of the judiciary. The supreme court further observed that that the dilemma of the law of contempt arises because of the constitutional need to balance two great but occasionally conflicting principles – freedom of expression and fair and fearless justice.
Further in the words of the supreme court that the Constitution of India has guaranteed freedom of speech and expression to every citizen as a fundamental right. While guaranteeing such freedom, it has also provided under Article 129 that the Supreme Court shall be a Court of Record and shall have all the powers of such a Court including the power to punish for contempt of itself. Similar power has been conferred on the High Courts of the States under Article 215. Under the Constitution, there is no separate guarantee of the freedom of the press and it is the same freedom of expression, which is conferred on all citizens under Article 19(1). Any expression of opinion would, therefore, be not immune from the liability for exceeding the limits, either under the law of defamation or contempt of Court or the other constitutional limitations under Article 19(2). If a citizen, therefore, in the garb of exercising the right of free expression under Article 19(1), tries to scandalize the court or undermines the dignity of the court, then the court would be entitled to exercise power under Article 129 or Article 215, as the case may be. In relation to a pending proceeding before the Court, while showing cause to the notices issued, when it is stated the court displays a disturbing willingness to issue notice on an absurd despicable, entirely unsubstantiated petition, it amounts to a destructive attack on the reputation and the credibility of the institution and it undermines the public confidence in the judiciary as a whole and by no stretch of the imagination, can be held to be a fair criticism of the Court’s proceeding. When a scurrilous attack is made in relation to a pending proceeding and the notice states that the issuance of notice to show cause was intended to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it, is a direct attack on the institution itself, rather than the conduct of an individual Judge.
Conclusion
If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very corner-stone of our constitutional scheme will give way, and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the courts are entrusted with extraordinary powers of punishing those who indulge in acts, whether inside or outside the courts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalizing it.
When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalized but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.
No person can flout the mandate of the law of respecting the courts for the establishment of rule of law under the cloak of freedoms of speech and expression guaranteed by the -Constitution. Such freedom is subject to -reasonable restrictions imposed by any law. Where a provision, in the law, relating to contempt -imposes reasonable restrictions, no citizen can take the liberty of scandalizing the authority of the institution of judiciary. Freedom of speech and expression, so far as they do not contravene the statutory limits as -contained in the Contempt of Courts Act, is to prevail without any hindrance. However, it must be remembered that the maintenance of the dignity of courts is one of the cardinal principles of rule of law in a democratic setup, and any criticism of the judicial institution couched in language that apparently appears to be mere criticism but ultimately results in undermining the -dignity of the courts cannot be permitted when found having crossed the limits and has to be punished.
The Supreme Court in ln Re: Harijai Singh & Another [1996(6) SCC 466] has pointed out that a free and healthy press is indispensable to the function of a true democracy but, at the same time, cautioned that the freedom of the press is not absolute, unlimited and unfettered at all times and in all circumstances. Lord Denning in his book “Road to Justice” observed that Press is the watchdog to see that every trial is conducted fairly, openly, and above board but the watchdog may sometimes break loose and has to be punished for misbehaviour.
Frankfurter, J. in Pennekamp v. Florida [(1946) 90 Led 1295 at p. 1313] observed: “If men, including Judges and journalists, were angels, there would be no problems of contempt of Court. Angelic Judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding Judges in deciding on behalf of the community as impartially as is given to a lot of men to decide, is not a privilege accorded to Judges. The power to punish for contempt of court is a safeguard not for Judges as persons but for the function which they exercise.”
The law of contempt has been enacted to secure public respect and confidence in the judicial process. If such confidence is shaken or broken, the confidence of the common man in the institution of judiciary and democratic set up is likely to be eroded which, if not checked, is sure to be disastrous for the society itself.
References
- In Re: S.K. Sundaram Suo Motu Contempt Petition (Crl.) No. 5 of 2000. ( 2001 2 SCC 171)
- SUO MOTU CONTEMPT PETITION NO. 312 of 2013In Re: Rameshwar Prasad Goyal, Advocate.
- In re Arundhati Roy —Contemner Suo Motu Contempt Petition (Crl.) No. 10 of 2001.
- Bathina Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149.
- In Re: Vinay Chandra Mishra (the alleged contemner), AIR 1995 SC 2348.
- In Re: S. Mulgaokar, 1978(3) SCC 339.
- E.M. Sankaran Namboodripad v. T. Narayanan Nambiar, 1970(2) SCC 325.
- Sheela Barse v. Union of India & Ors., 1988(4) SCC 226.
- In Re: Sanjiv Datta, Deputy Secretary’s, Ministry of Information & Broadcasting, New Delhi & Ors., 1995(3) SCC 619
- P.N. Duda v. P. Shiv Shanker & Ors., 1988(3) SCC 167.
- ln Re: Harijai Singh & Another, 1996(6) SCC 466. 12.
- Dr. Subramanian Swamy v. Rama Krishna Hegde, 2000(10) SCC 331.
- Brahma Prakash Sharma & Ors. v. The State of Uttar Pradesh, 1953 SCR 1169.
- Reg. v. Gray, (1900) 2 G.B. 36.
- Surender Nath v. Chief Justice and Judges of the High Court, 10 Cal. 109.
- Pennekamp v. Florida, (1946) 90 Led. 1295 at p. 1313.
- Perspective Publications (P) Ltd. v. State of Maharashtra, 1969(2) SCR 779.
- Maheshwar Peri & Others – Appellants Versus High Court of Judicature at Allahabad Through Registrar General – Respondent Criminal Appeal No. 549 of 2016 (Arising out of S.L.P. (Criminal) No. 5032 of 2015) Decided On : 30-06-2016.
Devajyoti Barman, a hard-core litigation practitioner for the last 20 years having his area pf practise primarily in the field of civil, constitutional, corporate, arbitration and criminal laws in High Court, Calcutta and Supreme Court of India is a law columnist as well.
He has degree of LL.B, PGDHRD and LL.M at his credit and has been empanelled by various Navratna PSUs , Incorporated Companies Real Estate Firms and Bank to represent them before the High Court, Calcutta. He is an Arbitrator and Corporate practisioner before the NCLT, Kolkata Bench as well.
He runs a law firm under the trade name of Ace Legal having its pan Indian presence. He can be reached at www.acelegalfirm.com.
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